Citation Nr: 0606276
Decision Date: 03/03/06 Archive Date: 03/14/06
DOCKET NO. 01-06 936 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased disability rating for
prostatitis, currently evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J.W. Kim, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1973 to
October 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an August 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. In September 2004, the veteran testified
before the undersigned Veterans Law Judge at a Board hearing
at the RO. In December 2004, the Board remanded the appeal
for further development.
FINDINGS OF FACT
The veteran's prostatitis is currently asymptomatic.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 10 percent
for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.3, 4.115b, Diagnostic Code 7527
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In this case, the veteran was not provided a proper VCAA
notice letter prior to the initial AOJ decision. In an
analogous case, the United States Court of Appeals for
Veterans Claims (Court) acknowledged in Pelegrini that where
the § 5103(a) notice was not mandated at the time of the
initial AOJ decision, the AOJ did not err in not providing
such notice. Rather, the veteran has the right to content
complying notice and proper subsequent VA process.
Pelegrini, supra at 120.
After review, the Board finds that any defect with respect to
the timing of the VCAA notice requirement was harmless error.
Although proper notice was provided to the veteran after the
initial AOJ adjudication, the veteran has not been prejudiced
thereby. The content of the March 2004 notice letter
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. The
letter informed the veteran of the information and evidence
necessary to substantiate a claim for an increased rating.
The letter also informed him of his and VA's duties in
obtaining evidence, and essentially asked him to send any
evidence in his possession that pertains to his claim.
In addition, VA provided the veteran with a copy of the
appealed August 2000 rating decision, August 2001 statement
of the case, December 2004 Board remand, and November 2003
and October 2005 supplemental statements of the case. These
documents provided notice of the law and governing
regulations, as well as the reasons for the determinations
made regarding his claim. By way of these documents, he was
also specifically informed of the information and evidence
previously provided to VA or obtained by VA on his behalf.
Furthermore, the record reflects that VA has made reasonable
efforts to obtain relevant records adequately identified by
the veteran. Specifically, the information and evidence that
have been associated with the claims file consist of service
medical records, post-service VA and private medical records,
records from the Social Security Administration, and
statements made by the veteran in support of his claim.
Not only has the veteran been provided with every opportunity
to submit evidence and argument in support of his claim and
to respond to VA notices, but the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the veteran has been
afforded a meaningful opportunity to participate effectively
in the processing of his claim. For these reasons, it is not
prejudicial to the veteran for the Board to proceed to
finally decide this appeal.
II. Analysis
Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), which is based on average impairment in
earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. § 4.1 (2005). The veteran's entire history is
reviewed when making disability evaluations. See 38 C.F.R.
§ 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran. 38
C.F.R. § 4.3 (2005).
Where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also
Powell v. West, 13 Vet. App. 31, 35 (1999) (all relevant and
adequate medical data of record that falls within the scope
of the increased rating claim should be addressed).
The veteran's prostatitis is currently evaluated as 10
percent disabling under Diagnostic Code 7599-7527, 38 C.F.R.
§ 4.115b (2005). The Board notes that the veteran's
disability has been evaluated by analogy. 38 C.F.R. § 4.20
(2005).
Under Diagnostic Code 7527, the disability is to be rated as
voiding dysfunction or urinary tract infection, whichever is
predominant. 38 C.F.R. § 4.115b.
After review, the Board finds that the preponderance of the
evidence is against a finding for an increased disability
rating for prostatitis. In this regard, the Board observes
that the veteran's prostatitis is currently asymptomatic and
notes the following evidence of record.
A January 2000 VA examination report provides a diagnosis of
a history of prostatitis. The Board views this diagnosis as
indicating that the veteran currently has no symptoms due to
his service-connected prostatitis.
A July 2000 VA examination report reflects that the veteran's
urinary symptoms could be related to obstruction because of
benign prostatic hypertrophy or they could be due to an
overactive bladder. Either way, the veteran's symptoms were
not attributed to his service-connected prostatitis.
A May 2001 VA prostate biopsy report reflects a diagnosis of
benign hyperplasia. Thus, the report confirms the diagnosis
of benign prostatic hypertrophy.
A May 2002 VA examination report reflects a diagnosis of a
previous history of prostatitis. The Board again notes that
this diagnosis reflects a history of the disorder and not a
present symptomatology of the disorder. Further, the
examiner opined that prostatitis is not the cause of the
veteran's urinary frequency, as the veteran related this to
as long as he can remember and pre-existing military service.
The examiner explained that prostatitis should not be the
cause of longstanding incontinence or urgency, stating that
it is an inflammatory or infectious process that can be
treated with antibiotics and should not be related to the
veteran's symptoms.
The Board acknowledges that the veteran's claims file was not
made available to the May 2002 VA examiner. The Board
observes that review of the claims file is only required
where necessary to ensure a fully informed exam or to provide
an adequate basis for the examiner's findings and
conclusions. See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064
(1996). In this case, the Board finds that resort to the
veteran's claims file was not necessary because the veteran
provided an accurate account of his medical history, thus
ensuring a fully informed examination. In this regard, the
Board observes that the veteran's account as related to the
examiner essentially reflected the evidence of record at that
time. The Board also finds that resort to the claims file
was not necessary for the examiner to provide findings as to
the current symptoms of the veteran's service-connected
prostatitis.
Finally, a September 2005 VA examination report reflects
various urinary symptoms but attributes them to benign
prostatic hypertrophy, a disorder for which service
connection is not in effect. In an addendum, the examiner
stated that the veteran has no signs of chronic prostatitis.
Thus, the veteran currently does not have any symptoms
attributable to his service-connected prostatitis.
In sum, the evidence of record fails to show that the veteran
has any symptoms related to his service-connected
prostatitis. Thus, an increased disability rating is not
warranted at this time.
The Board notes that the veteran has some urinary symptoms,
but they have been attributed to benign prostatic
hypertrophy, for which service connection is not in effect.
In this regard, the Board observes that the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation is
to be avoided. 38 C.F.R. § 4.14 (2005).
The Board also notes that the veteran has erectile
dysfunction. However, the record fails to show that it is
related to his prostatitis. Indeed, in a second addendum to
the September 2005 VA examination report, the examiner stated
that it is not as likely as not secondary to the veteran's
benign prostatic hypertrophy. This statement indicates that
the veteran's erectile dysfunction is not even related to his
current urinary symptomatology. Further, the examiner stated
that it is as likely as not that the erectile dysfunction is
related to the veteran's years of polysubstance abuse.
ORDER
Entitlement to an increased disability rating for
prostatitis, currently evaluated as 10 percent disabling, is
denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs